Mr. Chairman and
distinguished Members of the Subcommittee, I am honored to be here today
representing the American Immigration Lawyers Association (AILA). I am Steven Ladik, President of the American Immigration Lawyers
Association. AILA is the immigration bar association of more than 7,500
attorneys who practice immigration law.Founded in 1946, the association is a nonpartisan, nonprofit
organization and is an affiliated organization of the American Bar Association
(ABA).

AILA takes a very
broad view on immigration matters because our member attorneys represent tens
of thousands of U.S. families who have applied for permanent residence for
their spouses, children, and other close relatives to lawfully enter and reside
in the United States.AILA Members also
represent thousands of U.S. businesses and industries that sponsor highly
skilled foreign professionals seeking to enter the United States on a temporary
basis or, having proved the unavailability of U.S. workers, on a permanent
basis.Our members also represent asylum
seekers, often on a pro bono basis, as well as athletes, entertainers, and
foreign students.

AILA appreciates this
opportunity to express its views on the issue of the restructuring of the
Immigration and Naturalization Service (INS). Before discussing any specific
proposals, it is important to frame the issues before us. As the federal agency
responsible for both enforcing U.S. immigration law and adjudicating
applications for naturalization and family and business immigration, the INS
needs to function efficiently, effectively, and fairly.The INS needs to function well, now more than
ever before, given the September 11 terrorist attacks. These attacks underscore
what we knew all along: that the agency’s two functions, enforcement and
adjudications, are both in the national interest and merit the attention of and
support from Congress.

The INS increasingly
has come under attack from Congress, its customers, the press, and the general
public for ineffective management of its dual adjudication and enforcement
functions. Sweeping changes in the law and unprecedented growth in the size and
responsibilities of the INS have overwhelmed the agency.In spite of some modest successes in INS’
efforts to improve customer service, AILA attorneys still must tell clients
that they must wait years to reunite with close family members, acquire U.S.
citizenship to participate in our democracy, and obtain needed legal immigrants
to fill employment needs, all because an over tasked and under resourced
bureaucracy is taking years to adjudicate their applications.

The INS also has been
severely criticized for failing to effectively enforce immigration laws through
nationally set priorities applied consistently, professionally and
humanely.Post-September 11, many have
concluded that the agency cannot do its job because of reports that some of the
terrorists were in legal status, others had overstayed their visas, and the
status of others are simply unknown because of the lack of any records about
them.While “Fortress America” is
impossible to achieve and not in our national interest, we also cannot tell what
is in people’s minds and hearts. So, we must take care here with our
criticisms.Among other possible changes
in needed in the law, this situation points to mandating that federal law
enforcement agencies share intelligence information, an important provision in
several recent bills including H.R. 3205 that was introduced by Representatives
Conyers (D-MI), the Ranking Member of the Judiciary Committee, Cannon (R-UT),
Berman (D-CA), and Graves (R-MO). Finally, many criticize the INS for detaining
people without disclosing who is in detention, the charges against them, and
where and under what circumstances they are being held. While the agency and
our entire government have an enormously difficult task, we must seek to
balance our security needs with maintaining the very principles for which we
are fighting:We must act within
Constitutional bounds.

Why has the INS
faltered in carrying out its missions?There are many reasons for this and both the INS and Congress must share
responsibility. First, the agency’s combined functions of immigration
enforcement and adjudications need to be both better differentiated and
coordinated.Second, are the vast
changes in immigration law, the unprecedented growth in the INS’ size and
responsibilities, and ineffective management that together have contributed to
the agency’s current state. Third, is the continued
absence of adequate resources on the adjudications side that Congress, as it
addresses restructuring, must consider. Finally,
Congress has contributed to the agency’s problems because of conflicting,
complicated, unfunded, and incomplete mandates.The results? People wait years to reunite with
close family members and to obtain U.S. citizenship, businesses are forced to
wait years to fill jobs with needed legal immigrants, immigration laws are not
enforced consistently, professionally, or humanely, and the INS is crippled
because it is granted neither the financial resources nor sometimes the
authority (such as access to relevant data bases of other federal law
enforcement agencies) to successfully fulfill its functions.

AILA already is on
record urging the creation of a new, independent cabinet-level department or
agency combining all current immigration functions of the INS and the
Departments of Justice, State, and Labor. Such an agency should separate, but
coordinate, immigration services and enforcement functions.If a new, independent agency is unfeasible,
AILA urges the creation within the Department of Justice of two separate, but
coordinated, entities for services and enforcement. Those new bureaus should be
overseen by someone in charge, either an Associate Attorney General for
Immigration Matters or an Administrator of Immigration Affairs, who reports
directly to the Attorney General. Having such a person in charge would improve
accountability by fully integrating policy making with policy implementation,
ensuring direct access to high-level officials within the executive branch,
attracting top managerial talent, and coordinating the efforts of the two
bureaus.

To put it simply, a
high-level individual with clout should head the reorganized, and adequately
funded. immigration agency, and the adjudications and
enforcement functions should be separated, but strategically coordinated,
within the Department of Justice.What
is needed is this single, focused, and adequately funded national chain of
command to pursue both an integrated national enforcement strategy and the
immigration services functions.

We are pleased that
the Immigration Subcommittee, the Judiciary Committee, and the Bush
Administration all support reforming the INS. We look forward to working with
all parties to effect a sound restructuring of the
federal immigration function.To that
end, we are eager to review the Administration’s plan that would
administratively reorganize the agency. We believe that a significant number of
the issues can be resolved administratively and that any Congressional
initiatives need to await review of the Administration’s plans.We also caution the Administration and
Congress to undertake this reorganization in a way that takes into account of,
and does not disrupt, the enforcement and adjudication requirements of our
post-September 11 world.

AILA welcomes
Representatives Sensenbrenner (R-WI) and Gekas’ (R-PA) interest in this
issue.The Chairs of the Judiciary
Committee and Immigration and Claims Subcommittee respectively have important
roles to play and perspectives to explore in the intensifying debate about
restructuring. Their introduction of H.R. 3231, the Immigration Reform and
Accountability Act of 2001, reflects their concerns and the importance of the
issue to them. We also look forward to working with Representative Sheila
Jackson-Lee (D-TX), the Ranking Member of the Immigration and Claims
Subcommittee, who introduced H.R. 1562, the Immigration Restructuring and
Accountability Act of 2001. Representative Jackson-Lee also has a keen interest
in this issue and much to contribute to the debate.AILA looks forward to exploring those areas where
we agree and differ and recognize that we share the same goal:an effective, efficient and fair immigration
function.

AILA believes that any
successful reorganization of the INS must be based on the following five
criteria:

(1)Accountability and leadership must
come from the top. Appoint a high level, full-time person in charge of both the
adjudications and enforcement functions.This person will integrate policy making with policy implementation and
lead and coordinate the separate service and enforcement functions.

There needs to be one
full-time, high-level person in charge of our nation’s immigration functions.
Having one person in charge would improve accountability, so very important
after the September 11 terrorist attacks, by fully integrating policy making
with policy implementation, ensuring direct access to high-level officials
within the executive branch, attracting top managerial talent, having authority
both horizontally and vertically, and leading the efforts of the two bureaus. Especially
after September 11, it is vitally important that one person at the top
articulates a clear, coherent, and unified immigration policy within the
government, to Congress, and to the world.

Unfortunately, as
introduced, H.R. 3231 does not create a high level person with clout.The bill abolishes the INS and creates a new
Agency for Immigration Affairs (AIA) headed by an Associate Attorney General
(AAG).However, this AAG appears to have
insufficient authority, especially when compared to the authority and clout
given to the Directors of the two bureaus the bill creates, the Bureaus of
Immigration Services and Adjudications and Enforcement.(In contrast, H.R. 1562 creates an Associate
Attorney General for Immigration Affairs whose office has more authority than
the two bureaus the bill also creates.)

It is highly unlikely
that a coherent, unified immigration policy could result from the immigration
structure created in H.R. 3231. Among other functions, the AAG oversees and
supervises the two bureaus and the Executive Office of Immigration Review
(EOIR), coordinates the administration of national immigration policy,
reconciles conflicting polices of the two bureaus and EOIR, and allocates and
coordinates resources through the Office of Shared Services. However, the AAG’s insufficient authority is underscored by the weak
positions created within the AIA:legal
advisor (rather than a General Counsel) who provides legal advise
to the AAG and issues legal opinions on “general issues of law,” policy advisor
(rather than an Office of Policy and Strategy), and chief financial advisor
(rather than a Chief Budget Officer). While the Director of the Office of
Shared Services is housed within the AIA, H.R. 3231 includes a study to
determine if this function should be transferred to the two bureaus.Finally, an Office of Ombudsman is housed in
the AIA and, while reporting to the AAG, is independent of the AAG and reports
directly to Congress. (Furthermore, the Ombudsman has extensive
responsibilities with regard to problems with the Bureau of Immigration
Services and Adjudications, but has no responsibility for addressing problems
individuals may have with the Bureau of Enforcement.No other entity appears to fulfill that
function, certainly not the AIA.)Finally, the bill creates in the AIA an office of Professional
Responsibility and Quality Review. Importantly, H.R. 3231 includes no
authorization to fund the AAG.

The clout and
authority created in H.R. 3231 is exercised by, not the AAG, but rather, the
two Bureaus and their Directors. H.R. 3231 separates out the two current
functions of the INS and creates within the Department of Justice a Bureau of
Immigration Services and Adjudications, and a Bureau of Enforcement, each
headed by a Director.While both
Directors report to the AAG, this reporting appears not to grant much authority
to that office.Each of the Bureau Directors
establishes policies, oversees the administration of such policies and is in
charge of the functions within each of their Bureaus. Housed within each are
offices with real mandates and authority. Each Bureau has its own General
Counsel, Office of Policy and Strategy, Chief Budget Officer, Office of
Operations Statistics, Office of Congressional, Intergovernmental and Public
Affairs, as well as field and operational offices.H.R. 3231 goes into detail about the sector
and field organization of the Bureaus that might be best left to be determined
administratively to allow the immigration functions to better respond to
changing circumstances.

In summary, the
structure laid out in H.R. 3231 -- a weak AAG and two strong, separated
bureaus, is a recipe for conflicting legal strategies, public and budgetary
policies, and information relayed to Congress and the general public. H.R. 1562
does not exhibit this problem.The bill
establishes in the Department of Justice an Office of the Associate Attorney
General for Immigration Affairs (AAGIA).The AAGIA is in charge, supervising and coordinating the functions
performed by the Directors of the Bureaus of Immigration Services and
Enforcement that are established under this bill.The AAGIA’s office
includes many of the necessary functions for someone in charge: a Legal
Counsel, Chief Financial Officer, Office of Shared Services, and the Office of
Immigration Quality Assurance, Professional Responsibility, and Customer
Service.Furthermore, the two bureaus
established in H.R. 1562, unlike those in H.R. 3231, are not created to be
competing centers of authority.In
addition, the bill adds an important office to both bureaus: an Office of
Children’s Affairs.Each of these
offices is charged with any and all responsibility and authority relating to
the special needs of children.H.R. 1562
also strives to provide protections against processing delays by including a
Sense of Congress that the Directors of the Bureau of Immigration Services
“shall develop, implement and maintain procedures to ensure, to the extent
practicable,” that all complete benefit applications are granted or denied
within reasonable periods of time that are noted in the bill’s provisions. H.R.
1562 also mandates that the Attorney General, no later than one year after
enactment, submits to the Senate and House Judiciary Committees an
implementation plan that details an organizational structure that shall “ensure
accountability by, and coordination among,” the Office of the AAGIA and the two
bureaus.

Given this country’s
urgent need to maintain and upgrade our security, it is now more pressing than
ever to place one person in charge who is accountable
so that our laws are implemented quickly and fairly, rather than developing two
rival bureaucracies that will create and implement balkanized immigration
policies. Given this need for one person to be in charge of the two functions,
we also believe, in contrast to H.R. 3231 that places inspections in the Bureau
of Enforcement, that inspections should be housed in the AAG’s
office. Given that enforcement and adjudications come together in the
inspections process, it is important that the person in charge oversees the
exercise of this procedure and that inspectors receive training in
adjudications standards and enforcement procedures.

The need for someone
in charge of national policy who has authority over the two immigration
functions is evident with regard to this nation’s security needs. Such a
structure is evident in other areas as well. For instance, immigration
enforcement officers interdicting or inspecting asylum seekers will likely have
a different interpretation than do immigration service personnel on whether the
asylum seeker is eligible for protection under U.S. laws and treaty
obligations.

(2)Coordinate the
separated enforcement and adjudications functions.

AILA believes that
separating, while coordinating, the enforcement and adjudications functions
will lead to more clarity of mission and greater accountability, which, in turn
will lead to more efficient adjudications and more accountable, consistent, and
professional enforcement.H.R. 3231
meets one-half of that principle. It does create two separate Bureaus within
the newly created Agency for Immigration Affairs in the Department of Justice:
The Bureau of Services and Adjudications and the Bureau of Immigration
Enforcement. However coordination is as important as separation and H.R. 3231
provides little meaningful coordination between the functions.This coordination is largely lacking because
there is no high level official with authority over the two bureaus who would be able to coordinate shared information systems,
legal counsel, policies, and administrative infrastructure, including personnel
and training. The two bureaus would end up working at cross-purposes, with its
leaders sending conflicting messages on policy matters of complex laws.

Why is coordination so important?Please consider the following examples:

1)The Border Patrol
picks up a suspected illegal alien.He
claims to be a lawful permanent resident, but does not have his green card in
his possession.The Border Patrol needs
to check his status with Adjudications before determining whether to deport or
detain him.

2)Immigration
Adjudications receives a petition for H-1B status and suspects
fraud.The Service Center wants to check
on the employer’s record with INS and whether it has been found to hire
undocumented workers in the past.The
Adjudications division would need to access enforcement records to check on the
employer’s work site investigations records.

3)An adjustment
applicant claims to have no periods of unlawful presence.The Immigration Adjudicator suspects
otherwise based upon claimed dates of entry.Without easy access to entry/exit records from Inspections, the
adjudicator cannot confirm her suspicions.

4)There is a
discrepancy regarding physical presence in an application for Temporary
Protected Status (TPS).INS needs to
examine entry databases.Without easy
access to those inspections records, the application cannot be properly or
efficiently adjudicated.

Without someone in
charge who can resolve differences and close linkages between the two bureaus,
such routine referrals would likely become Kafkaesque nightmares. Congressional
staff handling requests for assistance on immigration matters also would have
to deal with two separate agencies, making their jobs much more difficult and
time-consuming.

(3)Provide adequate
resources for the adjudications and enforcement functions and ensure that
direct Congressional appropriations are available to supplement user fees.

As Congress ponders
reforming the INS, we urge you to also review how immigration functions have
been and should be funded. Currently, enforcement functions are supported by
Congressional appropriations, while adjudiciations
are almost entirely funded by user fees.In theory, fees paid by applicants for immigration benefits are used for
adjudicating the applications. In practice, however, a large share of the user
fees has been diverted to support other functions. Immigrants, particularly
when they already are experiencing lengthy delays and unacceptable levels of
service, should not be forced to pick up the check for programs unrelated to
the processing of their applications.The responsibility for programs that do not generate fees should be
shared among all taxpayers.

AILA supported the
establishment of the Examination Fee Account when it was first created.However, given its current history and the
status of that account, we have revised our views to urge Congress to
supplement user fees with Congressional appropriations to ensure that an
appropriate level of service is achieved.In addition, we urge Congress to stop diverting funds from the user fee
account to pay for unrelated, but important, initiatives.Congress should find sources of funding,
other than from user fees, to pay for these efforts.Importantly, given our nation’s enhanced
security needs after the September terrorist attacks, it is important that
Congress and the Administration support direct federal appropriations for the
kinds of technological, staffing, and infrastructure needs that both the
Department of State and INS (in its enforcement and adjudications functions)
will require. Such funding needs to come from direct federal appropriations.
Both agencies security agendas cannot be supported through user fees alone.
This enhanced capacity to meet our security needs is a national function best
supported through the federal government and will require such support on an
ongoing basis.

H.R. 3231, as does
H.R. 1562, takes some positive steps with regard to funding. Both bills
authorize appropriating funds for FY 2002 through 2004 to reduce the backlogs
in processing applications.Both also
provide a Sense of Congress that the missions of both bureaus are “equally
important,” that both bureaus should be “adequately funded,” and that neither
the adjudication nor enforcement function should operate at levels below that
in existence prior to the restructuring. H.R. 3231 also authorizes
appropriations for transition purposes and generally prohibits the transfer of
fees among the bureaus. However, H.R. 3231 provides no authorization to fund
the AAG or the AIA, with no account created for either, in contrast to the two
bureaus and the EOIR for which separate accounts are established in the
Treasury Department.In addition, H.R.
3231, by eliminating the fee account funding for asylum and refugee
adjudications and not authorizing appropriations for these important functions
essentially leaves both completely unfunded.

However, neither bill
sends the important signal that direct Congressional appropriations need to
regularly and on an ongoing basis supplement user fees.Without such a commitment, there will be
continuing backlogs in adjudications since direct Congressional appropriations
would be needed to ensure that backlogs do not reappear. H.R. 3231, introduced
after September 11, also does not take into account the need to authorize the
funding of additional kinds of procedures and protections the INS will need to
put into place given the terrorist attacks.

(4) Judicial, civil and other functions
should not be subsumed within the Agency for Immigration Affairs.

H.R. 3231 subsumes the
EOIR within the newly created Agency for Immigration Affairs.While few details are included in the bill,
the AAG would oversee the work of, and supervise, the Director of the Executive
Office for Immigration Review.The AAG
also would review on referral decisions of the Board of Immigration Appeals
(BIA) that the AAG directs the Board to refer, the Chairman or a majority of
the BIA refers, and the Directors of the Bureaus of Immigration Services and
Adjudications and Enforcement requests to be referred.

Among other functions,
EOIR reviews decisions denying asylum that are referred to them by the
INS.Similarly, EOIR makes asylum
determinations as the objective arbiter in adverse removal proceedings to which
INS is a party. EOIR, while part of the Justice Department,
is now independent from INS, and should remain so. This separation has
been important in ensuring that asylum seekers and others who go before EOIR
receive a fair hearing.

By mandating that the
AAG oversees the work of, and supervises, the EOIR, H.R. 3231 would infringe on
EOIR’s objectivity and independence. It is vitally
important to prevent institutional pressures from undermining EOIR’s ability to make impartial decisions in asylum and
other cases argued by Immigration Enforcement trial attorneys.If this provision of H.R. 3231 would become
law, Immigration judges and immigration “prosecutors” would all belong to the
same bureaucracy, thereby making it less likely that asylum
seekers and others would receive a fair hearing or a meaningful appeal.

These concerns apply
to the review on referral decisions of the BIA that is an independent appellate
body. Also of concern is that fact that functions currently performed by the
Department of Justice’s Civil Rights, Civil, and Criminal Divisions are
transferred to the two newly created bureaus.

(5) Any reorganization of the Immigration and Naturalization Service must
contribute to enhancing our nation’s security.

The Immigration and
Naturalization Service has an important role to play in helping our nation
enhance its security. To aid in that effort, a restructured immigration agency
needs a strong leader at the top who can quickly undertake decisive actions,
especially in periods of emergency.To
be effective, particularly in times of crisis, a reorganized agency also must
have accountability. Creating an agency with a weak position at the top (who is
the only Presidential appointee confirmed by Congress) and empowering the heads
of two conflicting bureaucracies is a recipe for conflict and dysfunction,
precisely what is not needed in ordinary times, and certainly not during
emergencies such as what we are now experiencing. H.R. 3231 proposes a
reorganization of the INS that does not fit our needs.

While a reorganized INS can help us isolate terrorists, we must
remember, as President Bush recently affirmed, that we are a nation of
immigrants. As we seek to create new means to isolate terrorists, we must take
care not to isolate America in the process.A reorganized INS must work toward these goals:Ensure that people who mean to do us harm are
barred from entering the U.S. but put out the welcome mat for people seeking to
reunify with their families, foreign professionals and others who fill the
needs of our economy, and asylees and refugees
seeking safe haven.

CONCLUSION

INS restructuring is
not a dry exercise involving reform of a government bureaucracy.Decisions in this area will impact directly
on our national security, as well as on the lives of hundreds of thousands of
American citizens, businesses, and legal immigrants who daily interact with
this system.Making the wrong decisions
can weaken our security through less effective and unfair enforcement, and
result in unconscionable delays in citizenship processing, reuniting families,
and helping business to acquire the workers they need.

As we continue to discuss
and debate the reorganization of the Immigration and Naturalization Service, it
is important to remember that:

·Restructuring is
but the first step in a long process, the end result of which needs to be
effective, efficient, and fair adjudications and enforcement.The Administration and Congress need to be
mindful of the end result.Both must
continue to pay attention to the INS’s needs and the
demands it faces, especially after September 11, while the agency needs to
deliver on its promises.

·Congress has the
opportunity to make reorganization a success. Reorganization should and can be
a nonpartisan effort that brings together the best thinking of Republicans and
Democrats, experts in the field, and the INS’ customers. We need to give the
Administration the opportunity to unveil its plan to Congress and the public.
In addition, Congress must recognize its important role in creating and
maintaining a vital and successful federal immigration function.Conflicting, complicated, unfunded and
incomplete mandates will threaten the agency’s ability to fulfill its mission
and bring us right back to where we are today.

·Any meaningful
restructuring of the immigration function needs to include financing
proposals.Restructuring would be
incomplete without also reviewing the sources of funding for this function,
especially given the increased demands on the agency that have resulted from
the September terrorist attacks. Furthermore, especially given the diversion of
funds in the adjudications function noted above and the fact that the
adjudications function cannot continue to be solely or largely funded through
user fees, any successful restructuring plan must respond to the funding needs
of the adjudications function.Both
enforcement and adjudications are in the national interest and should receive
adequate resources.

Mr. Chairman, thank you
very much for this opportunity to share my thoughts and perspectives with the
Subcommittee.AILA remains available to
discuss these matters with you at any future time, and is dedicated to working
with Congress and the Administration to ensure that reorganization succeeds. We
appreciate the opportunity this hearing has given us to explore this important
issue. Thank you.